A certian fairness is required

June 26, 2020 1:27 PM

Supreme Court of Canada: agreement saying an UberEats driver had to go to arbitration instead of suing in Ontario was so unfair it was invalid. Toronto Star: ruling paves the way for $400M class-action lawsuit by Ontario Uber drivers.

Friday’s Supreme Court ruling stems from a 2017 case launched by UberEats drivers David Heller arguing that he and other gig workers were employees of the ride-sharing giant, not self-employed entrepreneurs.

The class action stalled because Uber argued it couldn’t be sued in Ontario courts. According to a clause in its employment contract, drivers must take all workplace disputes to arbitration in the Netherlands — at a personal expense of more than $14,500.

Ontario Bar Association: Today's SCC decision in Uber v. Heller will impact numerous areas of legal practice in Canada, including contract, employment, arbitration and class actions law.

Previously and previously.

posted by Mitheral (18 comments total)

From the Toronto Star story:

Supreme Court Justices Abella and Rowe wrote in their decision that Uber’s arbitration clause was “unconscionable,” paving the way for Heller’s lawsuit against Uber to move through the Ontario court system.

I’m no labour lawyer, but this is encouraging in light of the Ontario Labour Relations board ruling on the status of Foodora delivery workers that found they were “dependent contractors”:

172. This is the Board’s first decision with respect to workers in what has been described by the parties and the media as “the gig economy”. However, the services performed by Foodora couriers are nothing new to the Board and in many ways are similar to the circumstances of the Board’s older cases. This is not the Board’s first case examining the relationship of couriers. The Board has been tasked with the same questions about dependent contractors in various sectors including transportation and construction. Such cases have always been fact-based inquiries that require a balancing of factors. This case is no different in many respects.

173. For the foregoing reasons, the Board finds that Foodora couriers are dependent contractors and must be treated as such under the Act. As the evidence bears out, couriers more closely resemble employees than independent contractors.
posted by mandolin conspiracy at 1:40 PM on June 26, 2020 [2 favorites]

I don't want to derail this conversation, but I love the "Cases in Brief" summaries that the Supreme Court of Canada website provides.

I really find these to be a useful public service -- I'm not a lawyer (nor am I Canadian, incidentally) but I find these clear and helpful. This is especially because half the time news articles summarize important court decisions in strange or lopsided ways, and it's often impossible to re-construct the relevant details of the case from a news story if you haven't been following it all along.
posted by andrewesque at 1:50 PM on June 26, 2020 [19 favorites]

@andrewesque - was just penning the same sentiment. They even include every-day translations of a few of the legal terms. What a great way to encourage an informed citizenry!
posted by Silvery Fish at 1:55 PM on June 26, 2020

Good. Enough of this contractors instead of employees schtick. I don't care how flexible Uber thinks it is, time to end it.
posted by Your Childhood Pet Rock at 1:56 PM on June 26, 2020 [8 favorites]

Oh cool. I saw the ruling get published this morning but was waiting for someone to write about it in human language. I too am impressed to learn about the summaries the SCC publishes.
posted by quaking fajita at 2:28 PM on June 26, 2020 [4 favorites]

Note that the arbitration that Uber demanded was $14500 US — or over $19800. The driver who brought the case forward earned between $20,800 and $31,200 per year before taxes and expenses.
posted by scruss at 6:04 PM on June 26, 2020 [5 favorites]

This is a fascinating decision that I've been slowly chewing through today. I'm not surprised to see the end result - in all honesty, Uber was so unquestionably demolished at the Ontario Court of Appeal that a win here would have been a huge shock. (That decision. It's a terrific read.) It is interesting to see the majority fully get into the doctrine of unconscionability; there's going to be an...uncertain time while that gets figured out at trial level. But I suppose I should be happy for some added job security.

And then there's Justice Côté's dissent. Any time an opinion starts with an unprompted declaration about liberty and the freedom of contract, you know somebody's getting screwed. The dissent itself is pure mental gymnastics, but that's what you need to go through to assert contractual supremacy in a country where our legislature has made it very, very clear we don't want any such thing. I don't often agree with Côté's dissents but this one is particularly bad, and a real wart on the decision.
posted by ZaphodB at 7:13 PM on June 26, 2020 [9 favorites]

I love Canadian law. From an American perspective it's like seeing the chamber music ensemble that you like sitting down at the same instruments one day and playing a full set of Cradle of Filth covers.
posted by 1adam12 at 9:10 PM on June 26, 2020 [3 favorites]

May I point out that this decision includes the adorable phrase, "It is the rule of law, not the rule of Uber." (concurring judgment of Justice Brown, at para 137)
posted by lookoutbelow at 10:04 PM on June 26, 2020

Their arbitration requirements immediately reminded me of an episode of Nathan for You (1 minute 20 seconds into this video) where people get a rebate for free gas *if* they do this nearly impossible stuff.

I wonder if Uber had just made a normal shitty-level fuck you contract they would have won, but instead had to have a super-villain arbitration clause.

Nthing how awesome that website is that describes the cases; even more impressed that the Canadian government does this.
posted by el io at 10:57 PM on June 26, 2020

Learned something from that website (from another decision):

Canada has two major legal traditions, common law (based on English law) and civil law (based on the French civil code). Quebec is the only province that applies civil law. It can be found in the province’s Civil Code, which applies to most non-criminal legal issues. Some concepts – like mortgages and hypothecs – are similar under common law and civil law. But they are often based on different principles and can have different rules. Having two main legal traditions helps make Canada unique. In fact, the Supreme Court of Canada is the only bilingual (two languages) and bijural (two legal systems) supreme court in the world.

posted by el io at 11:00 PM on June 26, 2020 [7 favorites]

These "disruptors" really are little more than parasites. Imagine if the electric company wanted to "disrupt" the economy by providing electric light, and then took a 50% cut of all economic activity taking place in lit spaces.

This is really not much different. We know how to write these kinds of apps now, this is just normal modern infrastructure, and no reason the tech guys need to be the gatekeepers. I want to see unionised / co-operative / collective setups where the workers are getting 90% of the $$$ and the magic disrupting tech is just a reasonable overhead expense in the background. If the millionaire CEOs of Uber and similar get buried and go bankrupt because of that, hey, bonus.
posted by Meatbomb at 1:13 AM on June 27, 2020 [5 favorites]

I love Canadian law. From an American perspective it's like seeing the chamber music ensemble that you like sitting down at the same instruments one day and playing a full set of Cradle of Filth covers.

When I was studying for and taking the NY Bar exams my approach to anything I wasn't sure of was to take what the law was in Canada and then say "what would we have done if we were jerks". I passed so there must have been something to it.
posted by any portmanteau in a storm at 4:30 AM on June 27, 2020 [9 favorites]

Not gonna lie it's heartwarming seeing so many people praise my country's legal system. It'd be nice if this ultimately meant Uber drivers get a living wage - the gig economy is really shit for the people in it. It's well past time for them to get proper benefits and fair wages. It's time we thought of an "executive salary" as like 150k a year. The enormous profits these guys reap on the backs of people who can barely live on what they're paid is the next injustice I want righted.
posted by signsofrain at 8:44 AM on June 27, 2020 [3 favorites]

> These "disruptors" really are little more than parasites. Imagine if the electric company wanted to "disrupt" the economy by providing electric light, and then took a 50% cut of all economic activity taking place in lit spaces.

Yup. Remember when folks working food delivery didn't have a rent-seeking middleman?

https://payup.wtf/doordash/no-free-lunch-report

The finding that pay is just $1.45/hour after expenses is low enough that it likely creates healthy skepticism. However, consider a job that pays DoorDash’s minimum rate of $2, requires 3 miles of driving from acceptance to the restaurant to the delivery location, and takes a half hour to complete. Accounting for the cost of the 3 miles at 58¢/mile reduces the $2 gross pay to $0.26. The additional 7.65% in payroll taxes paid by contractors reduces that to $0.24. Since it takes a half hour to complete the job, that results in a $0.48/hour rate for our sample job. This would be a perfectly “normal” job in DoorDash’s pay model — and pay almost nothing.

posted by sebastienbailard at 1:53 PM on June 27, 2020 [1 favorite]

Openlocal is a Canadian effort to provide the app technology underlying the gig economy as an open source, no cost public good to municipalities. They had started with a ride sharing platform but have shifted focus to a delivery platform as a response to COVID19.

"We see these services as 'digital infrastructure' - not standalone apps but a new layer of digital services, available as a public good, analogous to roads and pipes and snow removal services."
posted by tighttrousers at 3:41 PM on June 27, 2020 [1 favorite]

May I point out that this decision includes the adorable phrase, "It is the rule of law, not the rule of Uber." (concurring judgment of Justice Brown, at para 137)
posted by lookoutbelow at 1:04 AM on June 27

That one wasn't too bad, but I expect to be forcing a smile for years to come at poor-taste "Contract Uber Alles" jokes.
posted by ZaphodB at 12:26 PM on June 28, 2020

Here's one legal take on the possible implications of the decision. The author suggests that it has the potential to be very far reaching, but suspects that it won't be quite so far reaching in practise:

Could one argue, for instance, that misclassification, as a practice, is unconscionable? Is receiving your work schedule with one day’s notice unconscionable? Is it unconscionable to pay non-standard workers less than their permanent counterparts?

Despite Heller’s description of inequality of bargaining power, I suspect that the courts won’t use the doctrine to actively police contract fairness in employment. They will be wary of using it to address unfairness that is viewed as ‘normal’ in a competitive market system. I predict that the courts will interpret ‘financial desperation’ to require a very high degree of financial need, they will continue to rely on personal infirmities and vulnerability to find inequality of bargaining power, and will stick close to industry standards to determine what is ‘undue’ advantage or disadvantage. Most courts are unlikely to take the doctrine too far unless and until the SCC intervenes again and tells them to do so.

I've been interested in unconscionable bargains ever since I got into an argument with a libertarian about whether it was moral and legal to charge someone dying of thirst in the desert $1,000 for a bottle of water if you didn't need it yourself.
posted by clawsoon at 5:13 PM on July 1, 2020